IN THE HIGH COURT OF FIJI
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0390J.93S

Between:

TRADEWINDS MARINE LIMITED and
OCEANIC DEVELOPERS (FIJI) LIMITED
Plaintiffs

- and -

SAMUELA MATAWALU
Defendant

Mr. W. Morgan for Plaintiffs
Mr. Tevita Fa for Defendant

JUDGMENT

In this action the Plaintiff companies as the registered proprietors of a Protected Crown Lease Book A Folio 86 containing 2 r 34.5p situate in Section XIII in the Township of Suva and being Lots 8 and 9 thereof and known as 41 Gladstone Road, Suva on which is erected a building (hereafter referred to as the "property") have issued a summons under s.169 of the Land Transfer Act (hereafter referred to as "the Act") claiming immediate vacant possession of part of the property occupied by the defendant as his office.

The Plaintiffs have authorized LARRY LYNEL BORTLES (hereafter referred to as "BORTLES") the Managing Director of Oceanic Developers (Fiji) Limited to swear an affidavit in Support of the Summons.

The defendant has filed an Affidavit in Reply followed by a further Affidavit of the Plaintiffs and a Supplementary Affidavit of the defendant.

As agreed both counsel have filed written submissions for my consideration.

The Plaintiffs state that the property was transferred to it on 13 May 1992 and at that time the defendant was in occupation of a portion of it as a sub-tenant of the previous proprietor. The defendant is still in occupation despite three notices having been given to him to vacate. The third such notice was delivered on 1 March 1993. The Plaintiffs then on 12 July 1993 instituted the present proceedings after obtaining the consent of the Director of Lands on 21 June 1993 to do so.

The Plaintiffs say that the defendant has not been authorized to continue in occupation of the said building or property and that he is in unlawful occupation of same.

In his Affidavit sworn 9 September 1993 in reply to Bortle's said affidavit the defendant states inter alia that:

"it has been the express understanding between the Plaintiff, its predecessor in title and/that I would continue to be a tenant on the premises until the Plaintiff's development is complete whereupon I would be accommodated in the new complex planned alongside the present premises."

The Plaintiffs deny that there ever was any such "understanding" with them as stated hereabove by the defendant and that they have no knowledge of any "understanding" between the defendant and the Plaintiffs' predecessor in title.

The defendant filed a Supplementary Affidavit sworn 17 February 1994 in which he submits inter alia that in view of the prayers in the High Court Civil Action No. 458 of 1993 instituted by him on 5 November 1993, in which Plaintiffs are the defendants, I dismiss this summons as he argues that he has a defence and that in his circumstances the Plaintiffs cannot avail themselves of the summary procedure for ejectment. 

The defendant also argues that since the Plaintiffs accepted him as their tenant with full knowledge that no consent of the Director of Lands was obtained by the previous owner when the said building was let out to him, they are now "estopped in equity from relying on this illegality for afterall they have not come to Court with clean hands".

Under s.169 of the Act the Plaintiffs "as the last registered proprietors" of the property fall into the category of persons who are entitled to institute proceedings for ejectment under the said section.

As required under s.172 of the Act the onus is on the defendant to "show cause why he refuses to give possession of such land" and "if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessee or he may make any order and impose any terms he may think fit".

The defendant admits that he is in occupation of the property having come there as the tenant of the previous registered proprietor and that he has continued to occupy it after the property was sold to the Plaintiffs. He admits having been served with Notices to vacate the property and despite that he continues to occupy it.

The last notice I find is a valid notice to the defendant to give vacant possession. Hence in view of what I say hereafter on the question of consent of the Director of Lands, whatever licence he had to occupy was terminated by the said Notice. 

Now, dealing with the alleged "express understanding" referred to hereabove, as a legal practitioner, the defendant should have realized that such alleged general oral arrangements, if there were any, will not protect his interests as a tenant in the property in all the circumstances of this case.

In the said writ the defendant relies on the alleged oral "understanding" to allow him to remain in possession as a tenant. The Plaintiffs submit that s.59(d) of the INDEMNITY, GUARANTEE and BAILMENT ACT Cap. 232 (Vol XIII Laws of Fiji) does not allow the defendant to bring an action in his circumstances. The said s59(d) reads as follows:-

"59.	No action shall be brought -

(a)...

(b)...

(c)...

(d)	Upon any contract or sale of lands, tenements or hereditaments to or any interest in or concerning them; or ...

(e)...

unless the agreement upon which such action is to be brought or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorised."

It is not necessary for me to decide in this Summons on the applicability of s. 59(d) to the issue before me and I would therefore think it best not to comment on it in this action.

Also on this Summons the defendant is opposing mainly on the ground of the alleged "express understanding". The Plaintiffs vigorously deny this allegation as far as they are concerned and they also say that they are not aware of any arrangement with their predecessor in title. The defendant has not produced any evidence to support his contention. Even after the three Notices to Quit were served on him he did not raise this issue in any form except that some four months after the issue of this Summons he files the said Writ of Summons. On the evidence before me I find that there never was such "understanding" with the Plaintiffs. In this action I am concerned with the Plaintiffs as the registered proprietors and not with BORTLES. He is merely authorized to make the affidavits on behalf of the Plaintiffs.

In any case this assertion of his does not prove his right to possession. This is not a sufficient cause to my satisfaction as required under s.172 of the Act.

The fact that the defendant has commenced proceedings in the High Court, being the said civil action No. 95/93, against the Plaintiffs which was after the Summons was filed, seeking declarations that he has a tenancy in respect of the property is no bar to my hearing this Summons. In DINESH JAMNADAS s/o Jamnadas Lalji and SATISH JAMNADAS s/o Jamnadas Lalji v HONSON LIMITED (Civ. App. No. 22/85 FCA) MISHRA J.A. said:

"At the hearing, the appellants' main submission was that, as proceedings relating to the same matter were already before the Supreme Court, the application should be dismissed. The learned Judge, quite correctly in our view, held that existence of such proceedings was, by itself, not a cause sufficient to resist an application under section 169 of the Land Transfer Act. He said:-

'The defendants' case is that there was an agreement to grant them a lease which is an interest in land. They have not produced any memorandum or note thereof signed by the plaintiff or its agents and it must therefore be assumed that no such memorandum or note exists'."

An order for immediate possession was made in that case. A similar situation arises in the case before me.

Also in MUTHUSAMI s/o Ram Swamy v NAUSORI TOWN COUNCIL (Civ. App. No. 23/86 F.C.A.) MISHRA J.A. again expressed the same view as above in the following words:

".... that mere institution of proceedings by Writ did not by itself shut out a claim under section 169 of the Land Transfer Act in a proper case. It was for the appellant to show, on affidavit evidence, some right to remain in possession which would make the granting of an order under section 169 procedure improper."

Despite the claims in the Writ it is still possible for me to deal with this Summons. I agree with counsel that neither the Writ nor the Summons disclose any complicated issues of fact or law which would preclude me from hearing the matter under the summary procedure of s.169 (SHYAM LAL v ERIC MARTIN SCHULTZ (18 F.L.R. 152). In SHYAM LAL (supra) GOULD V.P. said that "the procedure in chambers under section 169 is not appropriate when there are complicated questions of fact (particularly if there are allegations of fraud) to be investigated". It was held that "the case fell within the ambit of section 169 of the Land Transfer Act, 1971, and the basic facts not being in dispute, the proceedings were rightly entertained by the learned judge under that section".

Also in RAM NARAYAN s/o Durga Prasad v MOTI RAM s/o Ram Charan (Civ. App. No. 16/83 FCA) GOULD J.P. said:

".... the summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way".

In any case even if there was any "understanding" for him to continue to occupy the property he would still be left to surmount the provisions of s.13 of the Crown Lands Act Cap. 131 which requires that consent must be obtained for a 'dealing' otherwise all arrangements will be unlawful, null and void.

As far as the alleged tenancy is concerned I find that it was an oral agreement with the previous registered proprietor and it continued that way after the sale of the property. I hold that because the property is a Protected Crown Lease and no consent of the Director of Lands had been obtained by either the previous or present registered proprietors to this "dealing", the alleged tenancy is null and void. The defendant therefore is an unlawful tenant of the property and he cannot justify remaining in possession. Even if one were to regard the defendant's occupancy as a licence to occupy, and that is what it is in this case, it was still a "dealing" which required the consent of the Director of Lands. (CHALMERS v PARDOE 1963 AER 552).

If the Plaintiffs did not take steps to get consent, it was open to the defendant to apply for it himself if he was at all serious about his legal rights. (D.B. WAITE (OVERSEAS) LTD v SIDNEY LESLIE WALLATH 18 FLR 141 F.C.A. at 142). If there were any discussion on the matter, which I doubt, it would have been with the previous proprietor. 

Hence his allegation, if any, should be directed against them and not against the Plaintiffs. In any case this ground is insufficient to in any way vest in the defendant a right to remain in possession of the property, for apart from anything else absence of consent of the Director of Lands makes the defendant's occupation of the property unlawful.

The defendant submits in his affidavit sworn 17 February 1994 that whilst the Plaintiffs raise the matter of absence of consent, they are "estopped in equity from relying on this illegality after all they have not come to Court with clean hands". I find that this argument holds no water, for in MISTRY AMAR SINGH v KULUBYA 1963 3 AER P.499, a Privy Council case, it was held that a registered owner of land was entitled to recover possession because his right to possession did not depend on the illegal agreements in that case but rested in his registered ownership and as the person in possession could not rely on the agreements because of their illegality he could not justify his remaining in possession. (underlining mine) That case "concerned an illegal lease of 'Mailo' land by an African to a non-African which was prohibited by a Uganda Statute except with the written consent of the Governor. No consent was obtained to the lease. After the defendant had been in possession for several years the plaintiff gave notice to quit and ultimately sued him for recovery of the lands. He succeeded." (quoting from RAM KALI below).

Also in RAM KALI f/n Sita Ram and SATEN f/n Maharaj (Action No. 93/77) KERMODE J. expressed a similar view:-

"It is not necessary to determine whether there was an alleged sale as the defendant contends or a tenancy as the plaintiff alleges. Either transaction was illegal without the consent of the Director of Lands. .....

While the plaintiff did disclose the illegal tenancy her claim for possession is based on the independent and untainted grounds of her registered ownership and she does not have to have recourse to the illegal tenancy to establish her case".(underlining mine)

To sum up, I find on the evidence before me that: the Plaintiffs are the registered proprietors of the property; there is no written tenancy agreement or any "understanding" between the Plaintiffs and the defendant to occupy the property; a proper notice had been given to the defendant to vacate; no consent of the Director of Lands had ever been obtained for the defendant's occupancy of the property and therefore his occupation is unlawful, null and void ab initio.

In the outcome, I find that the defendant has not shown cause why he should not give up possession of the property. He has not proved to my satisfaction any right to the possession of the property.

The Plaintiffs are therefore entitled to an order for immediate possession with costs under the provisions of the Land Transfer Act Cap. 131 and I do so order. The costs are to be taxed unless agreed.

D. Pathik
Judge
Suva
22 July 1994
HBC0390J.93S